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HomeMy WebLinkAbout2005-2333.Gray et al.11-11-14 DecisionCommission de Crown Employees Grievance Settlement UqJOHPHQt des griefs Board dHVHPSOR\pVGHOD Couronne Suite 600 Bureau 600 180 Dundas St. West180, rue Dundas Ouest Toronto, Ontario M5G 1Z8 Toronto (Ontario) M5G 1Z8 Tel. (416) 326-1388 7pl. : (416) 326-1388 Fax (416) 326-1396 7pOpF   GSB#2005-2333, 2005-2674, 2009-1604, 2010-2624 UNION#2005-0234-0257, 2005-0234-0354, 2009-0234-0116, 2010-0999-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Gray et al) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFOREBarry B. FisherVice-Chair FOR THE UNIONEd Holmes Ryder Wright Blair & Holmes LLP Barristers and Solicitors FOR THE EMPLOYERStewart McMahon Ministry of Government Services Labour Practice Group Counsel HEARING September 12, 2011. - 2 - Decision [1]This case involves the issue of shift premiums for certain shifts at the Vanier facility. [2]There are two schedules that are relevant to this case: 06:45 to 19:15 18:45 to 7:15 [3]The shift is 12.5 hours long, however it includes a 30 minute unpaid lunch break, so the employee is paid for 12 hours. [4]The issue here is whether the first 15 minutes and the last 15 minutes of these shifts entitle the employee to a Shift Premium under Article COR6.1.1, 6.1.2 and 6.1.3, which read as follows: COR6 1.1 Effective March 27, 1999, an employee shall receive a shift premium of one dollar ($1.00) per hour for all hours worked between 5:00 p.m. and midnight. Where more than fifty percent (50%) of the hours worked fall within this time period, the one dollar ($1.00) per hour premium shall be paid for all hours worked. COR6 1.2 Effective March 27, 1999, an employee shall receive a shift premium of one dollar and fifty cents ($1.50) per hour for all hours worked between midnight and 7:00 a.m. Where more then fifty percent (50%) of the hours worked fall within this time period, the one dollar and fifty cents ($1.50) per hour minimum shall be paid for all hours worked. COR6 1.3 Effective June 24, 2005, a premium of three dollars ($3.00) per hour shall be paid for all hours that commence on or after sevHQR¶FORFNSP)ULGD\DQGHQGRQRU EHIRUHVHYHQR¶FORFNDP0RQGD\ [5]It should be noted that the Union is seeking payment of the shift premium on a prorated basis, that is 30 minutes a day at the applicable rate. [6]7KH8QLRQV¶DUJXPHQWLVVLPSOH7KHHPSOR\HHVDUHZRUNLQJIRUWKRVHWZRPLQXWHVDWWKH beginning and the end of the shift and thus are entitled to the shift premium on a prorated basis. [7]7KH0LQLVWU\DUJXHVWKDWWKHWHUP³SHUKRXUIRUDOOKRXUVZRUNHG³UHTXLUHVWKDWHPSOR\HHV work a full hour of the shift premium period in order to be paid. In other words, there is no pro-rata provision. [8]Under the Ministry interpretation, the following scenarios would occur: 1)If an employee was scheduled and worked for 55 minutes into the premium period, he or she would receive no shift premium. 2)If an employee was scheduled and worked for 1 hour and 55 minutes into a premium period, he or she would receive a shift premium for only one hour. - 3 - [9] The Ministry says that where the parties intended to deal with periods of less than one hour, they used different language to express themselves. For instance, in Article 8.2.3, Overtime, the parties used WKHWHUP³SHULRGRIZRUN¶ >@,ILQGWKDWWKH8QLRQV¶DUJXPHQWLVPRUHSHUVXDVLYHDVLWFRUUHVSRQGVWRWKHXVXDOXQGHUVWDQGLQJ RIZKDWSHRSOHPHDQZKHQWKH\VD\³SHUKRXUIRUDOOKRXUVZRUNHG´ [11] Imagine if I were to offer you temporary emSOR\PHQWDQG,WHOO\RXWKDW,ZLOOSD\\RX³ SHUKRXUIRUDOOKRXUVZRUNHG´<RXZRUNKRXUVDQGPLQXWHV'R,RZH\RXRU" [12] I do not imagine that there is a person in the world who would expect that the proper pay would be $100. People rarely agree to work for free. >@7KHUHIHUHQFHWR³DOOKRXUVZRUNHG´LVLQWHnded to differentiate between scheduled hours and worked hours. In other words if an employee was scheduled to work 15 minutes into a premium period but in fact did not work that period, then no shift premium would be payable. [14] In other words, I find that the language used clearly includes the concept of pro rata payment and if the parties want to limit this provision to only full hours, then they would need to express that in clearer terms. [15] The grievance is allowed. I remain seized of any issue involving remedy and the interpretation and application of this award. th Dated at Toronto this 14 day of November 2011. Barry B. Fisher, Vice-Chair